ALJDEC decisions subject to certification as final

2022A-01759-CHC-ROC · Registrar of Contractors · 2022-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Epaws Heritage LLC,

DBA: Frutilandia,

COMPLAINANT

DC Builders LLC

License No. ROC 331731,

RESPONDENT

No. 2022A-01759-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 2, 2022

APPEARANCES: Illiana Reyna De Perez appeared via Google Meet on behalf of Complainant Epaws Heritage LLC. Carlos Dominguez appeared via Google Meet on behalf of Respondent DC Builders LLC. Registrar of Contractors Investigator Mike Wiskow appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

DC Builders LLC (Respondent) is the holder of License No. 331731 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 9, 2021, Epaws Heritage LLC (Complainant) contracted with Respondent to remodel a commercial space for their Fruitlandia Franchise. The contract amount was $135,000.00 and Complainant paid $120,000.00.

On or about March 3, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor and incomplete work with respect to project.

The Registrar assigned the complaint to Investigator Mike Wiskow. The jobsite inspection was performed on March 16, 2022.

Investigator Wiskow also issued a written directive on or about March 16, 2022, to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 30, 2022.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Restaurant not completed.

Investigator’s Observation: The restaurant is incomplete. Contractor should finish project per contract using appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original)

On March 31, 2022, Investigator Wiskow completed a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Wiskow noted:

Compliance Findings: Written Directive due 3/30/22 is not completed.

Compliance Item: - Restaurant not completed.

Investigator’s Observation: At the time of compliance inspection the restaurant is not completed and does not have a certificate of occupancy. The items not finished include:

1. Holes in the ceiling not repaired properly.

2. Large hole in the floor in the back room still needs a cover.

3. Holes in walls not repaired.

4. Water filtration system not installed.

5. Exhaust fan termination need to be extended at roof.

6. Gaps in either side of brick at front window.

7. Water line to ice cream scoop sink missing.

8. Temperature mixing valve at bathroom sink needs to be automatic. It is currently manual.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Note: Respondent not present at original jobsite inspection also not present at compliance inspection.

On April 6, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

On or about April 21, 2022, Respondent filed an Answer with the Registrar.

On or about May 9, 2022, a Notice of Hearing was issued setting a hearing on June 16, 2022, at the Office of Administrative Hearings, an independent state agency. After a continuance, the hearing was held on August 2, 2022.

At hearing, Investigator Wiskow testified as to the Registrar’s involvement, the above timeline and his findings on the Directive.

Investigator Wiskow testified that the project was “all over the place” so he gave the Directive to simply complete the project. Further, Investigator Wiskow testified that there was no representative from Respondent at the jobsite inspection.

In addition, Investigator Wiskow testified that while the 15 days he gave to complete the project, and that it may not have been enough time, the fact that Respondent showed a lack of commitment to completing the work, was the reason he moved forward with the Citation.

Complainant presented the testimony of Illiana Reyna De Perez and Epatacia Perez.

Ms. De Perez testified that the work was still not completed as there were overspray and holes in the walls. Ms. De Perez testified that she wants reimbursement and that he did not keep his word. Further, Ms. De Perez testified that she never heard from Mr. Dominguez after the permit was issued.

Epitacia Perez testified that they hired DC Builders LLC, but the contract was signed and all payments were made to Marco Bojorges. Mr. Perez testified that Mr. Bojorges informed him that his money was all spent on other projects. Further, Mr. Perez had to re-mortgage his house to pay rent for a store that was not opened because of the delays. Mr. Perez also testified that number 2, 3, 4, 6, 7, and 8 of the compliance notes were now completed.

Respondent presented the testimony of Carlos Dominguez, and Marco Bojorges. Mr. Dominguez testified that he was the general contractor consultant on the project, and obtained the permit, but that he recommended Marco to do the project and receive all payments.

Mr. Dominguez, testified he knew Marco since 2014 and worked on about 25 projects with him. Mr. Dominguez also testified that Mr. Bojorges was not licensed.

Mr. Bojorges testified that he was 100% in charge of the project and that he received all of the payments. He also testified that he was not a licensed contractor. Mr. Bojorges also testified that he did not see the drawings when he provided the estimated costs, and because a second panel was needed, this caused delays with finishing the project on time.

Administrative notice is taken of Respondent’s prior License record on August 17, 2022. Such prior License record reflects that Respondent’s License No. 331731 was first issued on December 21, 2022, and reflects that there was one open complaint, namely the present complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The restaurant was not completed per the testimony of the witnesses. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established Respondent failed to complete the corrective work following the Directive being issued. There was no justifiable defense from Mr. Dominguez as to why he could not timely complete the remaining items. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 331731 for a period of twenty (20) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 30 days from the date of that certification.

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-137160-45720000Done this day, August 17, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary